exv10w5w4









    Exhibit 10.5.4



 



    Date



 



    Employee Name




    Address



 



    Dear          :



 



    I am very pleased to announce that,
    effective          ,
    20   (“Grant Date”), the Board of Directors
    of Universal Technical Institute, Inc.
    (“Company”) hereby grants you (the
    “Grantee”) an award of performance shares, subject to
    your acceptance of and agreement to all of the applicable terms,
    conditions and restrictions described in this Award Agreement
    (the “Agreement”) and the Universal Technical
    Institute, Inc. 2003 Incentive Compensation Plan
    (“Plan”). To the extent that any provision of
    this Agreement conflicts with the terms of the Plan, the Plan
    shall govern and, if necessary, the applicable provisions of
    this Agreement shall be deemed amended so as to carry out the
    purpose and intent of the Plan. Any capitalized term not defined
    in this Agreement is defined in the Plan.



 




    RECITALS



 



    A. The Company adopted the Plan to provide incentives to
    attract and retain those individuals whose services are
    considered valuable by providing them an opportunity to own
    stock in the Company.



 



    B. The Company believes that entering into this Agreement
    with Grantee is consistent with those purposes.



 



    NOW, THEREFORE, the Company and Grantee agree as follows:



 




    AGREEMENT



 



    1. PERFORMANCE SHARES.  Subject to
    the terms of this Agreement and the Plan, the Company grants to
    Grantee a target award
    of          
    Performance Shares (each a “Performance Share”) for a
    total grant value of $     
    (“Grant Value”). Each Performance Share represents the
    right to receive one share of the Company’s common stock
    (“Stock”); provided however, based on the
    performance objectives, metrics and methodologies set forth in
    Section 4 and any adjustments pursuant to Section 7, 8
    or 12, the number of shares of Stock that may be deliverable to
    Grantee pursuant to this award may range
    from     %
    to     % of the number of performance
    shares granted under the terms of this Agreement (such stated
    number of performance shares hereafter referred to as the
    “Target Performance Shares”). The Grantee’s right
    to receive any performance shares pursuant to this award is
    contingent upon (i) the achievement of the performance
    objectives as outlined in Section 4 herein and
    (ii) except as provided in Section 7, the
    Grantee’s continued employment or service with the Company
    through the Settlement Date.



 



    The number and fair value of target performance shares are
    determined on the date of grant. The performance share fair
    values of each measurement period are as follows:



 



    Table 1:



 


	 	 	 	 	 
	

    Performance Share Fair Value


	
 
	
    Measurement Period
	
 

	 









 



    2. NO SHAREHOLDER RIGHTS.  The
    performance shares granted pursuant to this award do not and
    shall not entitle Participant to any rights of a shareholder of
    Stock. You shall have no voting rights nor have rights to any
    dividends or dividend equivalents declared with respect to the
    performance shares. The rights of Participant with respect to
    the performance shares shall remain forfeitable at all times
    prior to the date on which any earned performance shares are
    converted into Stock in accordance with Section 10.



 



    3. NONTRANSFERABILITY.  No
    performance shares granted under this award may be sold,
    transferred, pledged, assigned, encumbered or otherwise
    alienated, hypothecated or disposed of, other than by will or by
    the laws of descent and distribution. Any attempted sale,
    transfer, pledge, assignment, exchange, alienation hypothecation
    or disposition of any performance shares in violation of this
    Agreement will be invalid. In the event of Grantee’s death,
    any Stock distributable in settlement of earned performance
    shares will be delivered, at the time specified in
    Section 10, to Grantee’s beneficiary in accordance
    with, and subject to, the terms and conditions hereof and of the
    Plan.














 







    4. PERFORMANCE OBJECTIVES.



 



    A. Performance Period.  The
    Performance Period shall consist
    of          separate
    measurement periods of   months, with each measurement
    period commencing
    on          ,
    20  .



 



    B. Performance Objective.  The
    performance objective with respect to the Target Performance
    Shares is based on total shareholder return (“TSR”).
    TSR is the annualized rate of return shareholders receive
    through stock price changes and the assumed reinvestment of
    dividends (if applicable) paid over the measurement period. For
    purposes of determining the TSR, the change in the price of
    common stock shall be based upon the average of the closing
    price on each trading day in the
    30-day
    period preceding each of the beginning and end of the
    measurement period.



 



    C. Performance Index.  The number
    of performance shares earned by the Grantee over the measurement
    period will be based on the Company’s relative ranking with
    regard to TSR, as set forth in Table 1 below, as compared to the
    TSR for companies that comprise
    the          on
    the last day of the applicable measurement period.



 



    Table 2:



 


	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	

    TSR Index


	
 
	
 
	
      
	
 
	
 
	
 
	
      
	
 
	
 
	
 
	
      
	
 
	
 
	
 
	
      
	
 
	
 
	
 
	
      
	
 
	
 
	
 
	
      
	
 
	
 
	
 
	
      
	
 
	
 
	
 
	
      
	
 
	
 
	
 
	
      
	
 
	
 
	
 
	
      
	
 

	

    Percentile Rank


	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	

    Performance Shares Payout Percentage


	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 









 



    However, if there is a significant change in the Company’s
    business or business strategy (for example, by a merger,
    acquisition or divestiture), as the Committee determines in its
    sole discretion, the Committee may adjust the Target Performance
    Shares Payout Percentage as it considers appropriate in
    light of the change.



 



    D. Earned Performance
    Shares.  Following the end of each measurement
    period the Compensation Committee of the Board (the
    “Committee”) will calculate the Grantee’s earned
    performance shares for the applicable measurement period by
    multiplying a percentage of the awarded Target Performance
    Shares, as set forth in Table 3 below, by the performance shares
    Payout Percentage, as set forth in Table 2 above, subject to any
    adjustments provided under the Plan or the terms of this
    Agreement. However, the performance shares do not vest until the
    Settlement Date.



 



    Table 3:



 


	 	 	 	 	 
	

    % of Grant Value


	
 
	
    Measurement Period
	
 

	 









 



    The final determination of actual number of performance shares
    to which the Grantee is entitled will be made by the Committee
    in its sole discretion.



 



    PERFORMANCE-BASED
    COMPENSATION.  Compensation attributable to
    this Award is intended to constitute qualified performance-based
    compensation under Section 162(m) of the Code and the
    regulations thereunder. This Award Agreement shall be construed
    and administered by the Committee in a manner consistent with
    this intent. Notwithstanding this Section or any other provision
    of this Award Agreement or the Plan, to the extent required to
    ensure that compensation attributable to this Award Agreement
    constitutes qualified performance-based compensation under
    Section 162(m) of the Code the Target Performance Shares,
    Performance Shares Payout Percentage, the methods for
    determining TSR, and the Company’s policies on performance
    shares as they apply to Grantee shall not be revised in a manner
    that would result in an increase in the actual performance
    shares the Grantee is entitled to receive under this Award
    Agreement, except for an adjustment under Section 14 of the
    Plan as and to the extent permitted under Section 162(m) of
    the Code; and



 



    (b) Payment of compensation attributable to this Award
    Agreement shall be subject to the written certification by the
    Committee of the satisfaction of the performance objectives and
    other material terms in accordance with the requirements of
    Section 162(m) of the Code.



 



    5. VESTING.  Except as provided in
    Sections 6 and 7, the Grantee must remain in the continuous
    employ of or service to the Company throughout the entire period
    commencing on the Grant Date and ending on the date of
    settlement of any earned performance shares in order to receive
    the Stock with respect to such earned performance shares. The
    Grantee’s continuous employment of or service to the
    Company will not be deemed to have been















 







    interrupted by reason of a transfer of the Grantee’s
    employment between the Company and a subsidiary or an approved
    leave of absence.



 



    6. DEATH OR DISABILITY.  If prior
    to end of a measurement period, the Grantee dies or becomes
    permanently disabled while in the employ of or service to the
    Company, the number of shares of Stock to be issued will equal
    the number of performance shares that would have become earned
    performance shares in accordance with the provisions of
    Section 4 assuming that (a) each measurement period
    ended on the date of the Death or Disability and (b) the
    determination of whether, and to what extent, the performance
    objective is achieved, is based on actual performance against
    the stated criteria through the Death or Disability date.
    Payment of any earned performance shares shall be made as soon
    as administratively practicable on the Settlement Date following
    the end of the applicable measurement period (date of Disability
    or Death), but in no event later than
    21/2
    months after the end of the year in which the measurement period
    ends.



 



    7. CHANGE IN CONTROL.  In the event
    of a Change in Control, the number of shares of stock to be
    issued will equal the number of performance shares that would
    have become earned performance shares in accordance with the
    provisions of Section 4 assuming that (a) each
    measurement period ended on the date of the Change in Control
    and (b) the determination of whether, and to what extent,
    the performance objective is achieved, is based on actual
    performance against the stated criteria through the Change in
    Control date. Shares will convert to time based and vest either
    in accordance with the original schedule or in the event of
    termination without Cause or for Good Reason within one year of
    the change in control



 



    8. FORFEITURE OF PERFORMANCE
    SHARES.  If the Grantee’s employment
    with, or service to, the Company is terminated for any reason
    other than death or disability, prior to the settlement date,
    all outstanding performance shares that are unvested as provided
    in Section 10, shall immediately be forfeited.



 



    9. SETTLEMENT OF VESTED PERFORMANCE
    SHARES.  Awarded Target Performance Shares and
    earned Performance Shares shall be in bookkeeping entry form
    recorded in Grantee’s name. Any fractional Performance
    shares earned shall be rounded up to the nearest whole share of
    Stock. Payment of any earned performance shares shall be made as
    soon as administratively practicable on the Settlement Date
    following the end of the applicable measurement period, but in
    no event later than
    21/2
    months after the end of the year in which the measurement period
    ends. Earned performance shares will be settled solely in
    transferable shares of Stock.



 



    10. FEDERAL AND STATE TAXES.  The
    Company may require Grantee to pay the amount the Company deems
    necessary to satisfy its current or future obligation to
    withhold federal, state or local income or other taxes that
    Grantee may incur as a result of this Award. Grantee agrees
    that, at the option of the Company, the Company may withhold
    from the shares of Stock to be issued to Grantee, the number of
    shares necessary to satisfy the Company’s obligations to
    withhold taxes, that determination to be based on the
    Stock’s fair market value at the time as of which such
    determination is made. If the number of shares issuable to
    Grantee following satisfaction of the tax obligation (as
    described in the foregoing sentence) includes any fractional
    shares, Grantee agrees that the Company may issue to a cash
    payment in lieu of such fractional share.



 



    11. ADJUSTMENT OF SHARES.  In the
    event of a change in the Company’s capital structure,
    Article 14 of the Plan shall govern any adjustment to the
    number of performance shares awarded to Grantee pursuant to this
    Agreement.



 



    12. AMENDMENT OF AGREEMENT.  This
    Agreement may only be amended with the written approval of
    Grantee and the Company.



 



    13. GOVERNING LAW.  This Agreement
    shall be governed in all respects, whether as to validity,
    construction, capacity, performance or otherwise, by the laws of
    the State of Delaware, without regard to
    conflicts-of-laws
    principles that would require the application of any other law.



 



    14. SEVERABILITY.  If any provision
    of this Agreement, or the application of any such provision to
    any person or circumstance, is held to be unenforceable or
    invalid by any court of competent jurisdiction or under any
    applicable law, the parties hereto shall negotiate an equitable
    adjustment to the provisions of this Agreement with the view to
    effecting, to the greatest extent possible, the original purpose
    and intent of this Agreement, and in any event, the validity and
    enforceability of the remaining provisions of this Agreement
    shall not be affected thereby.



 



    15. ELECTRONIC DELIVERY.  The
    Company may, in its sole discretion, decide to deliver any
    documents related to grants awarded under the Plan or future
    grants that may be awarded under the Plan by electronic means or















 







    request Awardees consent to participate in the Plan by
    electronic means. Grantee hereby consents to receive such
    documents by electronic delivery and agrees to participate in
    the Plan through an on-line or electronic system established and
    maintained by the Company or another third party designated by
    the Company.



 



    16. ENTIRE AGREEMENT.  This
    Agreement constitutes the entire, final, and complete agreement
    between the parties hereto with respect to the subject matter
    hereof and supersedes all prior agreements, promises,
    understandings, negotiations, representations, and commitments,
    both written and oral, between the parties hereto with respect
    to the subject matter hereof. Neither party hereto shall be
    bound by nor liable for any statement, representation, promise,
    inducement, commitment or understanding of any kind whatsoever
    not expressly set forth in this Agreement.



 



    IN WITNESS WHEREOF, the Company has caused this Agreement to be
    executed by its duly authorized representative and you have
    signed this Agreement, in each case as of the day and year first
    written above. By your acknowledgement below, you accept and
    agree to abide by the terms of this Agreement and you further
    agree to be bound by and to comply with all terms and conditions
    of the Plan. By your signature below, you acknowledge that you
    have received a copy of the Plan, and understand that you may
    receive a copy of the Plan as amended and in effect at any time
    by requesting a copy from the Company’s Secretary. Please
    acknowledge that you received this agreement by signing a copy
    and returning it to the Company’s People Services
    Department
    by          ,
    20  .



 



    UNIVERSAL TECHNICAL INSTITUTE, INC.



 


			
	 	    By: 
	









    Kim McWaters, President and CEO



 



    I,          ,
    hereby acknowledge receipt of the foregoing award as
    of          .



 



    Signature: